1. (a) Every student receiving instruction in the essential knowledge and skills shall take the appropriate criterion-referenced assessments, as required by the Texas Education Code (TEC), Chapter 39, Subchapter B.
2. (b) A student receiving special education services under the TEC, Chapter 29, Subchapter A, enrolled in Grades 3-11 and who is receiving instruction in the essential knowledge and skills, shall take the assessment of academic skills unless the student's admission, review, and dismissal (ARD) committee determines that it is an inappropriate measure of the student's academic progress as outlined in the student's individualized education program (IEP). If the student's ARD committee determines that the assessment of academic skills is an inappropriate measure of the student's academic progress in one or more subjects, the student shall take the alternate assessment of academic skills in the subject or subjects. Each testing accommodation shall be documented in the student's IEP in accordance with 34 Code of Federal Regulations (CFR) §300.347(a)(5)(i) and (ii), relating to the content of the IEP and participation in statewide or districtwide assessments.
3. (c) In Grades 3-12, a limited English proficient (LEP) student, as defined by the TEC, Chapter 29, Subchapter B, shall participate in the assessments as required by this section and Subchapter AA of this chapter (relating to Commissioner's Rules Concerning the Participation of Limited English Proficient Students in State Assessments). In Grades 3-5, the language proficiency assessment committee (LPAC) shall determine whether a nonexempt LEP student whose primary language is Spanish will take the assessment of academic skills in English or in Spanish. The decision as to the language of the assessment shall be based on the assessment that will provide the most appropriate measure of the student's academic progress.
4. (d) A foreign exchange student who has waived in writing his or her intention to receive a Texas high school diploma may be excused from the assessment requirement as specified in the TEC, Chapter 39, Subchapter B.

Source Note:The provisions of this §101.5 adopted to be effective November 15, 2001, 26 TexReg 9088; amended to be effective March 23, 2005, 30 TexReg 1632; amended to be effective December 23, 2009, 34 TexReg 9200.